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Full-Text Articles in Fourteenth Amendment

State Immunity Doctrine: Demoting The Patent System, Charles C. Wong Feb 2018

State Immunity Doctrine: Demoting The Patent System, Charles C. Wong

Maine Law Review

Congress enacted the Patent Remedy Clarification Act (PRCA) in 1992, which authorized patent holders to sue a state for patent infringement in federal court. The PRCA clearly expressed Congress's intent to abrogate Eleventh Amendment state sovereign immunity as required by Atascadero State Hospital v. Scanlon. In 1996, Seminole Tribe v. Florida changed the landscape of congressional power to abrogate state immunity by declaring Congress may do so only if acting pursuant to its powers under section 5 of the Fourteenth Amendment. In his dissent, Justice Stevens forecasted that the Seminole Tribe decision would effectively leave patent holders injured by ...


Going To The Clerk’S Office And We’Re Not Going To Get Married, Alicia F. Blanchard Feb 2018

Going To The Clerk’S Office And We’Re Not Going To Get Married, Alicia F. Blanchard

University of Massachusetts Law Review

Same-sex marriage is a controversial topic subject to great debate. The Supreme Court in 2015 federally recognized the legality of same-sex marriages in Obergefell v. Hodges. Despite this ruling, some people looked for any reason to denounce the holding. Perhaps none were more vocal than those who rejected same-sex marriage on the basis of their religious tenets. Miller v. Davis provided people who were morally opposed to same-sex marriage a platform to support their concerns grounded in a First Amendment right to freedom of religion. The question is how far does one’s freedom of religion extend? Does freedom of ...


Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira Dec 2017

Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira

Cleveland State Law Review

Multiple mistrials following validly-prosecuted trials are becoming an increasingly harsh reality in today’s criminal justice system. Currently, the Ohio Supreme Court has not provided any guidelines to help its trial judges know when to make the crucial decision to dismiss an indictment with prejudice following a string of properly-declared mistrials, especially due to repeated hung juries. Despite multiple mistrials that continue to result in no conviction, criminal defendants often languish behind bars, suffering detrimental psychological harm and a loss of personal freedom as they remain in “legal limbo” waiting to retry their case. Furthermore, continuously retrying defendants cuts against ...


Rideout V. Riendeau: Grandparent Visitation In Maine After Troxel, Theodore A. Small Dec 2017

Rideout V. Riendeau: Grandparent Visitation In Maine After Troxel, Theodore A. Small

Maine Law Review

Rideout v. Riendeau presented a case in which two grandparents, Rose and Chesley Rideout, sought visitation of their three grandchildren. Though the Rideouts had served as the childrens' “primary caregivers and custodians” for significant periods of time, the childrens' parents, Heaven-Marie Riendeau, who was the Rideouts' daughter, and Jeffrey Riendeau, ended all contact between the children and the Rideouts due to a strained relationship between the Rideouts and the Riendeaus. The Rideouts filed a complaint pursuant to Maine's Grandparents Visitation Act (the Act), which allows grandparents to bring a petition for visitation when there is a “sufficient existing relationship ...


With Malice Toward One: Malice And The Substantive Law In "Class Of One" Equal Protection Claims In The Wake Of Village Of Willowbrook V. Olech, Shaun M. Gehan Dec 2017

With Malice Toward One: Malice And The Substantive Law In "Class Of One" Equal Protection Claims In The Wake Of Village Of Willowbrook V. Olech, Shaun M. Gehan

Maine Law Review

It may be time to relearn the fundamentals of the Equal Protection Clause of the Fourteenth Amendment. According to the Supreme Court, in a brief and unassuming per curiam opinion in Village of Willowbrook v. Olech, violations of equal protection do not of necessity rely on class-based discriminations. Federal, state, and local governments can violate the equal protection rights of an individual qua individual; a so-called “class of one.” The ramifications of this decision are just now becoming clear, and it has already led to some surprising results in areas of statutory law thought to be well settled. The only ...


Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck Dec 2017

Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck

Michigan Journal of Gender and Law

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how ...


Due Process Abroad, Nathan Chapman Dec 2017

Due Process Abroad, Nathan Chapman

Scholarly Works

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure. Up ...


Shh! State Legislators Bite Your Tongues: Semantics Dictates The Constitutionality Of Public School "Moment Of Silence" Statutes, Elizabeth Anne Walsh Nov 2017

Shh! State Legislators Bite Your Tongues: Semantics Dictates The Constitutionality Of Public School "Moment Of Silence" Statutes, Elizabeth Anne Walsh

The Catholic Lawyer

No abstract provided.


Silent Protest: A Catholic Justice Dissents In Buck V. Bell, Phillip Thompson Nov 2017

Silent Protest: A Catholic Justice Dissents In Buck V. Bell, Phillip Thompson

The Catholic Lawyer

No abstract provided.


Kingsley Breathes New Life Into Substantive Due Process As A Check On Abuse Of Government Power, Rosalie Berger Levinson Nov 2017

Kingsley Breathes New Life Into Substantive Due Process As A Check On Abuse Of Government Power, Rosalie Berger Levinson

Notre Dame Law Review

Part I of this Article briefly summarizes the origin and judicial development of substantive due process, focusing on the lead cases that have led appellate courts to narrowly construe the substantive due process guarantee. Part II discusses the Kingsley opinion, both the majority’s analysis and the dissent’s objection to the use of an objective reasonableness test. Part III suggests how Kingsley can be used by litigators seeking to protect pretrial detainees, not only from excessive force, but also from an official’s failure to protect or failure to care for the medical and other needs of pretrial detainees ...


The Failure Of Education Federalism, Kristi L. Bowman Nov 2017

The Failure Of Education Federalism, Kristi L. Bowman

University of Michigan Journal of Law Reform

Since the Great Recession of 2007–09, states have devoted even less money to public education and state courts have become even more hostile to structural reform litigation that has sought to challenge education funding and quality. Yet the current model of education federalism (dual federalism) leaves these matters largely to the states. As a result, state-level legislative inaction, executive acquiescence, and judicial abdication can combine to create a situation in which the quality of traditional public schools declines sharply. This is the case in Michigan, which is an unusually important state not only because the dynamics that are emerging ...


Legal/Legislative Issues In Euthanasia And Physician-Assisted Suicide, Edward Grant Oct 2017

Legal/Legislative Issues In Euthanasia And Physician-Assisted Suicide, Edward Grant

The Catholic Lawyer

No abstract provided.


The Right To Self-Directed Death: Reconsidering An Ancient Proscription, G. Steven Neeley Oct 2017

The Right To Self-Directed Death: Reconsidering An Ancient Proscription, G. Steven Neeley

The Catholic Lawyer

No abstract provided.


The Crossroads Of A Legal Fiction And The Reality Of Families, Andrew L. Weinstein Oct 2017

The Crossroads Of A Legal Fiction And The Reality Of Families, Andrew L. Weinstein

Maine Law Review

In Adoption of M.A., the Maine Supreme Judicial Court, sitting as the Law Court, held that an unmarried, same-sex couple could file a joint petition for adoption of two foster children in their care. This recent decision is only a fraction of a story that originated a long time ago when same-sex couples began raising children. This Comment begins by examining the role of the state courts and the United States Supreme Court in their exposition of family law relating to adoption by same-sex couples. The United States Supreme Court has periodically weighed in on family law and parenting ...


Bray V. Alexandria Women's Health Clinic: Abortion Protesters Are Not Liable Under The Ku Klux Klan Act, Sue Mota Oct 2017

Bray V. Alexandria Women's Health Clinic: Abortion Protesters Are Not Liable Under The Ku Klux Klan Act, Sue Mota

The Catholic Lawyer

No abstract provided.


Constitution Day Lecture: Constitutional Law And Tort Law: Injury, Race, Gender, And Equal Protection, Jennifer B. Wriggins Oct 2017

Constitution Day Lecture: Constitutional Law And Tort Law: Injury, Race, Gender, And Equal Protection, Jennifer B. Wriggins

Maine Law Review

The focus of today’s annual Constitution Day lecture at the University of Maine School of Law is on the Fourteenth Amendment and specifically how the Equal Protection Clause relates to tort law. First, I will talk about the Equal Protection Clause in general—what it says, and some of what it has been held to mean—particularly where government makes distinctions based on race and gender. Second, I will discuss two historical tort cases that violate equal protection on the basis of race. In doing so, I uncover the racial history of tort law that has been hidden in ...


Fisher V. University Of Texas At Austin: Navigating The Narrows Between Grutter And Parents Involved, Kimberly A. Pacelli Oct 2017

Fisher V. University Of Texas At Austin: Navigating The Narrows Between Grutter And Parents Involved, Kimberly A. Pacelli

Maine Law Review

Universities’ use of race as a factor in their admissions decisions has been a divisive issue both in the legal system and in political discourse. Opponents of affirmative action have challenged racial preferences in public university admissions under the Equal Protection Clause of the Fourteenth Amendment. Individuals who find themselves denied a coveted seat in a university class and suspect that racial preferences are to blame will often challenge their rejection as a denial of their state’s “equal protection of the laws.” The United States Court of Appeals for the Fifth Circuit recently considered whether the University of Texas ...


Enough Is Enough: The Law Court's Decision To Functionally Raise The "Reasonable Connection" Relevancy Standard In State V. Mitchell, Robert P. Hayes Oct 2017

Enough Is Enough: The Law Court's Decision To Functionally Raise The "Reasonable Connection" Relevancy Standard In State V. Mitchell, Robert P. Hayes

Maine Law Review

In State v. Mitchell, the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a jury verdict finding Thomas Mitchell guilty of a 1983 murder. In doing so, the Law Court examined two issues: First, whether the trial court “abused its discretion in excluding evidence of an alternative suspect”; and second, whether the trial court’s decision to admit evidence stemming from an autopsy performed two decades before the trial violated the Confrontation Clause of the United States Constitution. In reaching the alternative suspect decision, the Law Court held that the evidence proffered by Mitchell did not establish a ...


Enforcement Dissonance: Lobsters, The Legislature, And Federal Waters In State V. Thomas, Christopher J. Rauscher Oct 2017

Enforcement Dissonance: Lobsters, The Legislature, And Federal Waters In State V. Thomas, Christopher J. Rauscher

Maine Law Review

Consider the following: You, a Maine resident, and your friend, a Massachusetts resident, have gone for a weekend trout fishing trip to Acadia National Park in Downeast Maine. The two of you are happily catching trout, and then each of you hook a bass and reel it in. Keeping the bass is illegal under Maine law but not banned by the National Park. Along comes a Maine game warden, who spies the two of you and cites only you with a fine for catching and keeping the bass. The warden says nothing to the Massachusetts resident who continues to fish ...


God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale Oct 2017

God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale

Maine Law Review

Boulder County, Colorado has been at the forefront of the environmental movement for decades. Starting with its citizens’ vote in 1967 to implement a tax specifically to preserve open space, the city has long been known for its progressive environmental policies. At the center of Boulder’s environmental protection efforts is a comprehensive system of land use regulations designed to mitigate the slow chokehold of ever-encroaching development on wetlands and open space, on groundwater and soils, and on wildlife and native species. Numerous communities across the country have followed Boulder’s much-praised model and enacted their own environmental zoning laws ...


"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain Oct 2017

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

Maine Law Review

Young children are frequently precluded from testifying at trial on the grounds of incompetency because they cannot answer questions about abstract concepts regarding “truth” and “lies.” In this situation, should the child’s earlier, out-of-court statements disclosing the abuse and identifying the abuser also be inadmissible? The stakes are huge. If young children cannot testify, and their out-of-court statements are precluded, they simply become safe prey, unprotected by the judicial system. The pivotal question becomes, are there procedures that can ensure fairness both to children and to their alleged abusers? This article argues that a child’s testimonial incapacity at ...


The Equal Rights Amendment: A Legal Assessment, Wilfred R. Caron Sep 2017

The Equal Rights Amendment: A Legal Assessment, Wilfred R. Caron

The Catholic Lawyer

No abstract provided.


Abortion And The Conscience Of The Nation, Ronald Reagan Sep 2017

Abortion And The Conscience Of The Nation, Ronald Reagan

The Catholic Lawyer

No abstract provided.


Humane Provisions For Aborted Human Remains, Patrick Monaghan Sep 2017

Humane Provisions For Aborted Human Remains, Patrick Monaghan

The Catholic Lawyer

No abstract provided.


Human Life Federalism Amendment - I. Legal Aspects, Professor John S. Noonan, University Of California Sep 2017

Human Life Federalism Amendment - I. Legal Aspects, Professor John S. Noonan, University Of California

The Catholic Lawyer

No abstract provided.


Human Life Federalism Amendment - I. Legal Aspects, Dennis J. Horan, Esq. Sep 2017

Human Life Federalism Amendment - I. Legal Aspects, Dennis J. Horan, Esq.

The Catholic Lawyer

No abstract provided.


Human Life Federalism Amendment - I. Legal Aspects, Wilfred R. Caron, General Counsel, United States Catholic Conference Sep 2017

Human Life Federalism Amendment - I. Legal Aspects, Wilfred R. Caron, General Counsel, United States Catholic Conference

The Catholic Lawyer

No abstract provided.


The Loving Analogy: Race And The Early Same-Sex Marriage Debate, Samuel W D Walburn Sep 2017

The Loving Analogy: Race And The Early Same-Sex Marriage Debate, Samuel W D Walburn

The Purdue Historian

In the early same-sex marriage debates advocates and opponents of marriage equality often relied upon comparing mixed-race marriage jurisprudence and the Loving v Virginia decision in order to conceptualize same-sex marriage cases. Liberal commentators relied upon the analogy between the Loving decision in order to carve out space for the protection of same-sex marriage rights. Conservative scholars, however, denounced the equal protection and due process claims that relied on the sameness of race and sexuality as inexact parallels. Finally, queer and black radicals called the goal of marriage equality into question by highlighting the white supremacist and heterosexist nature of ...


The Establishment Clause - The Expanding Definition Of Excessive Entanglement: Gilfillan V. City Of Philadelphia, Joseph J. Tesoriero Sep 2017

The Establishment Clause - The Expanding Definition Of Excessive Entanglement: Gilfillan V. City Of Philadelphia, Joseph J. Tesoriero

The Catholic Lawyer

No abstract provided.


Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe Sep 2017

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Nelson Tebbe

No abstract provided.